Simultaneous disclosure of multiple medical reports and the RTA Protocol

The High Court recently handed down judgment on an appeal considering the interpretation of the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (“the RTA Protocol”), specifically simultaneous rather than sequential disclosure of medical reports involving whiplash injuries.

Greyson v Fuller [2022] EWHC 211 (QB)

The Defendant submitted that the Claimant could not rely on her additional medical reports as they had been served simultaneously with the first report. It was argued that this was not compliant with the RTA Protocol, in that further medical reports were not ‘justified’ in a soft tissue injury claim where the first expert’s report has not been disclosed to the defendant.  

Considering an appeal from the first instance decision, Mrs Justice Foster held that the meaning of the word ‘justified’ in the Protocol lent itself to a sanction in cost penalties and not the admissibility of the reports themselves.  Foster J found that the reports had been correctly served at Stage 3, and accordingly the Defendant’s appeal was dismissed.

This is a disappointing decision for defendants as the exclusion of additional medical evidence served simultaneously had been supported by existing case law, albeit via decisions issued in the lower courts.

The claim dealt with the pre-31 May 2021 wording of the RTA Protocol, and Foster J considered her conclusions were supported by the amendments made at that time to insert paragraph 7.8C in relation to soft tissue/whiplash injuries. The changes made to the both the RTA Protocol and introduction of the Low Value RTA Protocol have addressed this issue in relation to soft tissue injury claims.

In respect of those claims pursued under the Low Value RTA Protocol post-31 May 2021, the position around further medical reports, and the sanction for obtaining a report that is not justified is clearer. Paragraph 7.6(3) clearly states that “Where a further medical report is not justified, the claimant may not be able to recover the fees paid for the further report.”

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Background

The Defendant admitted liability following a road traffic accident. The Claimant obtained a GP report which provided a four-month prognosis. This report was not disclosed to the Defendant immediately. Having failed to recover in that period, the Claimant attended an orthopaedic expert who found her problems were ongoing and provided a longer prognosis. The Claimant still did not recover in line with the extended prognosis and sought further medical reports, including from a pain consultant.

The Claimant disclosed all her medical reports simultaneously to the Defendant in her Stage 2 Settlement Pack. The Defendant had an offer of settlement rejected by the Claimant and the matter proceeded to a Stage 3 hearing. At the hearing, the Defendant argued the Claimant could not rely on the subsequent reports because they had been disclosed simultaneously and not sequentially.

Paragraph 7.8B(2) of the RTA Protocol stated at the relevant time (absent 7.8C):

7.8B In a soft tissue injury claim—

(1) it is expected that only one medical report will be required;

(2) a further medical report, whether from the first expert instructed or from an expert in another discipline, will only be justified [our emphasis] where—

(a) it is recommended in the first expert's report; and

(b) that report has first been disclosed to the defendant;

The Defendant argued that the further reports were not justified because the initial report had not “first been disclosed to the defendant”. The Defendant therefore submitted that the further reports were automatically inadmissible and could not be relied upon at the Stage 3 hearing.

First instance decision

At first instance, His Honour Judge Petts found the additional reports were not justified because the first medical report had not been disclosed to the Defendant. The default position was therefore that the Claimant could not rely upon them without the court’s permission.

However, when considering sanctions around the question of evidence, PD8B 7.1(3) refers to circumstances in which the claim ‘cannot be properly determined’ without the further medical reports. ‘Properly determined’ involved wider considerations than whether it is technically feasible to assess damages without a particular piece of evidence. HHJ Petts held the Denton v White criteria applied, and in those circumstance allowed the medical reports to be included in the claim.

Appeal

The Defendant appealed, argued the RTA Protocol had been misinterpreted in favour of the Claimant, in a manner inconsistent with the stringent scheme of the RTA Protocol. The Defendant further alleged the principles of Denton has been incorrect applied. It was submitted that there ought to have been exchanges of evidence upon which the judge could base his application of CPR 3.9 but the decision was made on the material already before him.

The Claimant submitted that other references to the word ‘justified’ in the Protocol led to a consideration of costs implications, not the admissibility or validity of the element in questions.

Foster J found that it was difficult to construe what the draughtsman intended with the word ‘justified’. She found it was clumsily expressed but was intended to mean “that medical reports that are disclosed to the Defendant outside of the strict provisions of the Protocol at Stage 2 are not to be treated without more (i.e. without the permission of the court) as automatically coming within “justifiable” costs, and to be paid for.”

It was held that “a medical report not being ‘justified’ per paragraph 7.8B(2) of the RTA Protocol goes to the risk of penalty in costs rather than admissibility of the medical report”.

On the issue of Denton and whether any relief from sanction was necessary, Foster J noted that when the case proceeded from Stage 2 to Stage 3 the Claimant had served the reports on the Defendant under the provisions that govern Stage 3 in Practice Direction 8B.  The additional reports had been served as required under the rules, and not objected to at that stage. Accordingly, she was not required to consider relief from sanctions and Denton. An order under PD 8B 7.1(3) was therefore not necessary to grant the Claimant permission to rely upon the reports.

The Defendant’s appeal was dismissed.